Cape Coral:Threatened lawsuit has no merit

October 1, 2013

Cape Coral officials say a threatened lawsuit designed to replace a barrier removed from a city waterway is without merit and the issue is closed.

Officials with the state agency also named declined comment on the suit. They said, however, reinstallation would cause more harm than environmental good - the reason an environmental coalition filed a 60-day notice of a lawsuit Saturday against both the Florida Department of Environmental Protection and the city.

John Iglehart, local director of the Florida DEP, said he hasn't seen the notice letter and had no comment, but he said the city and the state did all they could to follow an agreement concerning the barrier.

"The city was required to file a permit to replace the barrier and we denied it," Iglehart said. "We found most of the water is tidal and just putting a barrier there would not have the impact we thought it would. Where the water comes in, it goes out."

Iglehart also said the barrier would have a negative impact on the smalltooth sawfish, a protected species.

Iglehart added the city developed the net ecosystem benefits package in lieu of the barrier, which satisfied the consent order and closed the case.

The coalition, though, says it will go to court to enforce a settlement agreement and that DEP consent order the group maintains requires the replacement of the Ceitus Barrier in the North Cape Coral Spreader Canal.

The replacement barrier must include either a boat lift or boat lock and must be located about 1,000 feet north of the previous barrier.

Phil Buchanan, one of the plaintiffs, said the coalition is taking over where the county left off, since Lee County was the original plaintiff.

"They voted 5-0 to bring the suit, but the election (that defeated Ray Judah) scared the rest of them into doing anything environmental anymore," Buchanan said. "When they didn't do it, I had to step in."

The lawsuit would ask the Circuit Court to enforce a 2008 settlement in which Cape Coral agreed to restore the Ceitus Barrier with a boat lift or boat lock, and to require the DEP to enforce its own consent orders, which the groups maintain also require restoration of the Ceitus Barrier.

"We all signed an agreement saying they would put the barrier back and they've welched on the agreement," Buchanan said. "They were supposed to get permits for a boat lift or lock, but did not in good faith get them. They applied for a denial of a permit."

Buchanan claims the city didn't supply the data needed to grant a permit.

Buchanan said the barrier serves a purpose to block off the water and require it to rise by 16 inches to allow it to flow through the wetlands to the west.

If this doesn't happen, the wetlands don't get the fresh water it needs for the fish nursery, the excess fresh water gets dumped in North Matlacha, and the salt water marine life cannot survive there, Buchanan said.

"The oysters and sea grass require salt water and if they don't get enough they die," Buchanan said. "The adult fish can swim in the fresh water, but the nurseries are a different story."

Rae Ann Wessel, natural resource policy director of the Sanibel-Captiva Conservation Foundation, said when no compromise could be found in lieu of a barrier, the order required the barrier to be put back in.

"In exchange for dropping our challenge back when it allowed the city to remove the barrier. We would enter into an ecosystem management approach designed to find an alternative to the barrier," Wessel said. "We did not come to a consensus."

Englehardt said alternatives to another barrier continue to be looked at.

"We're working at revisiting all those old flow ways that went from the spreader waterway into Matlacha Pass," Iglehart said. Bringing more flow in is a good thing. So, we're progressing on this."

Cape Coral Councilmember Kevin McGrail said, in his mind, the case is closed and doesn't believe it will be an issue at the next city council meeting.

"The issue has been resolved. This was vetted through the North Spreader Eco-Mangement Agreement process, was looked at by the FDEP and was considered when they made their ruling on the boatlift," McGrail said. "We lived up to our end of the bargain. We expected what would happen according to the science."

McGrail added the runoff released from Lake Okeechobee has done more damage than five years of removal of the boatlift, and that the city will live up to its agreement regarding the Utility Expansion Project in North 2, part of the agreement.

Most important, McGrail said, the Lee County Board of County Commissioners, which first brought forth the threat of a suit last year, isn't taking part.

"That should tell you that the environmental groups, who were never going to be happy with whatever we came forth with, are still not happy, yet the BOCC has decided the issue is put to rest," McGrail said, who believes this is a suit against the state (since they do the permitting) and that the city will be "in the second chair" should the case reach a courtroom.